Rader v. Rhodes.

• Decision Date: 22 November 1944
• Docket Number: No. 4857.,4857.
• Citation: 153 P.2d 516,48 N.M. 511
• Parties: RADERv.RHODES.
• Court: New Mexico Supreme Court

48 N.M. 511

153 P.2d 516

RADER

v.RHODES.

No. 4857.

Supreme Court of New Mexico.

Nov. 22, 1944.

Appeal from District Court, Grant County; A. W. Marshall, Judge.

Action by J. H. Rader against B. O. Rhodes for declaratory relief. From a judgment for defendant, plaintiff appeals.

Reversed.

The section of Compensation Act reserving right of injured workman to sue third-party tort-feasor was not repealed by implication by subsequent enactment declaring remedy under Compensation Act to be exclusive, since such declaration applied only between workman, employer, and compensation insurer and had no reference to liability otherwise existing. 1941 Comp. §§ 57-904, to 57-906, 57-925.

Mechem & Hannett and Joseph L. Smith, all of Albuquerque, for appellant.

Seth & Montgomery, of Santa Fe, and C. C. Royall, of Silver City, for appellee.

MABRY, Justice.

This is a suit for a declaratory judgment, here upon appeal from a decision adverse to appellant, plaintiff below. Appellant Rader asks for a judgment declaring a certain section of the statute relative to liability to a workman of any person other than the employer for damages inflicted has not been repealed. It does not become important to notice the circumstances surrounding, or the character of, the injury alleged to have been suffered by appellant. Such matter is unimportant for the purpose of this suit.

The controversy between the parties involves only the construction of 1941 Comp. Sec. 57-904, 57-905, 57-906, and 57-925, the defendant's contention being that Section 57-925 has been repealed by Sections 57-904 to 57-906, inclusive.

Appellant had theretofore and after the injury accepted compensation from his employer under the New Mexico Workmen's Compensation Act for the identical injury, and appellee contends that, although having no connection with plaintiff's employment and being an entire stranger to the operation of the Workmen's Compensation Act as it applied as between appellant and appellee, nevertheless he would not, under the circumstances, be liable for the injury complained of. The question of plaintiff having accepted compensation, incidentally, does not become important here. It is the fact that appellant, the workman, came under the Act at all which is important.

The pertinent and single inquiry here presented goes to the question whether a third party is, in view of the New Mexico Workmen's Compensation Act, liable for injuries inflicted by him and sustained by a workman who comes under the Act. In other words, must the workman look exclusively to the provisions of such Act for any compensation to which he would be entitled?

The one question of law raised by appellee's affirmative defense is to be resolved by answer to the question whether or not Section 57-925, supra, has been repealed. If there has been a repeal of the section, it is solely by implication and because of Sections 57-904 to 57-906, subsequently enacted. Section 57-925 (Sec. 24, Chapter, 113, Laws of 1929) reads:

“The right of any workman, or, in case of his death, of those entitled to receive payment or damages for injuries occasioned to him by the negligence or wrong of any person other than the employer as herein defined shall not be affected by this act ***, but he or they, as the case may be, shall not be allowed to receive payment or recover damages therefor and also claim compensation from such employer hereunder, and in such case the receipt of compensation from such employer hereunder shall operate as an assignment to the employer, his or its insurer, guarantor or surety, as the case may be, or any cause of action, to the extent of the liability of such employer to such workman occasioned by such injury which the workman or his legal representative or others may have against any other party for such injuries or death.”

The pertinent portions of subsequently enacted Sections 57-904, 57-905, and 57-906 (Chap. 92, Laws of 1937) read:

“Such election and compliance with the provisions of this act *** shall be, and be construed to be, a surrender by the employer and the employee of their rights to any other method, form or amount of compensation or determination thereof, or to any cause of action, action at law, suit in equity or statutory or common-law right or remedy or proceeding whatever for or on account of such personal injuries ***.” (Emphasis ours.) Section 57-904.

“Any employer who has elected to and has complied with the provisions of this act, ***, including the provisions relating to insurance, shall not be subject to any other liability whatsoever for the death of or personal injury to any employee, except as in this act *** provided; and all causes of action, actions at law, suits in equity, and proceedings whatever, and all statutory and common-law rights and remedies for and on account of such death of, or personal injury to any such employee and accruing to any and all persons whomsoever, are hereby abolished except as in this act *** provided.” (Emphasis ours.) Section 57-905.

“The right to the compensation provided for in this act, ***, in lieu of any other liability whatsoever, to any and all persons whomsoever, for any personal injury accidentally sustained or death resulting therefrom, shall obtain in all cases where the following conditions occur: ***.” (Emphasis ours.) Section 57-906.

The emphasized portions of the last above mentioned three sections of the statute, appellee says, clearly indicate that no other right of recovery is given to or permitted the workman who comes under the Act. Whether the injuries inflicted be by some third person, or otherwise, says appellee, so long as the injury is suffered in the course of his employment, the remedy provided the workman by the Act is exclusive.

[1] Appellant argues that there has been no repeal by implication as is contended for and that the exclusive character given to the remedy provided by the subsequently enacted Chapter 92 of the Laws of 1937 has reference to, and applies only as between, employer and employee, and the insurance carrier necessarily, and has no reference to the liability otherwise existing where the injury is caused by the tortious act of a third person; that Section 57-925 preserved such right in the earlier enactment and that this provision of the law was not repealed by any implications to be found in the subsequent act of 1937. With this construction we agree with appellant.

[2][3] Repeals by implication are not favored, and where the provisions of an earlier act can be reconciled with those of a later one no repeal will be implied. It is only where such construction is absolutely necessary in order to give the subsequent statute effect that a repeal will be implied. State v. Romero, 32 N.M. 178, 253 P. 20; In re Martinez' Will, 47 N.M. 6, 132 P.2d 422.

[4][5] Although not favored, courts will consider as repealed by implication statutes where the repugnancy is so clear as to make irreconcilable the two acts; and the language of the particular later act will be looked to for an indication of an intention to repeal an earlier expression on the same subject. See Ellis v. New Mexico Construction Co., 27 N.M. 312, 201 P. 487. Total irreconcilability as between the earlier and later act will, necessarily, operate as a repeal. Territory v. Digneo, 15 N.M. 157, 103 P. 975.

The Colorado case of Froid v. Knowles, 95 Colo. 223, 36 P.2d 156, is cited and relied upon by appellant. It is a case from a state from which we took our early Compensation Act, and a case decided prior to our adoption of the Act of that state, which, under the rule, would ordinarily call for a construction in harmony with the construction given by the courts of the foreign state prior to our adoption of such state's statute. Palmer v. Farmington, 25 N.M. 145, 151, 179 P. 227; Bissetti v. Roberts, 25 N.M. 365, 371, 183 P. 403.

While it may not be said that the Colorado court there had before it, or decided, the exact question here presented, we take notice of the language, logic and fundamental reasoning employed in that case. To quote [95 Colo. 223, 36 P.2d 158]:

“It will aid our study, we think, if we shall keep in mind that the liability of a tort-feasor is predicated on fault; that of an employer, under the Compensation Act, on relationship. What plaintiff received from or through his employer resulted from relation; what he seeks from defendant is based on the latter's alleged fault. To the Workmen's Compensation Act, the purpose of which is ‘to determine, define and prescribe the relations between employer and employee,’ defendant was as a stranger. ‘An outsider does not share the burdens of the act imposed upon the employer, and he is entitled to none of its benefits.’ Hotel Equipment Co. v. Liddell, 32 Ga. App. 590, 124 S.E. 92, 94.”

“In a Delaware case this language is found: ‘There is nothing in the provisions of the Compensation Act which destroys the liability of a non-employer tort-feasor to respond in damages to the proper party for the death of an employee, notwithstanding such employee or his dependents has or have accepted the benefits of the Workmen's Compensation Law. When the purpose of the Workmen's Compensation Act is borne in mind it would be highly unreasonable to assume that in its enactment the Legislature intended to save a class of wrongdoers who are in no wise related to the compensation scheme from the liability which the law had theretofore imposed upon them. The Workmen's Compensation Act concerns only employer and employee and is designed to afford a fair and equitable adjustment of their mutual rights and obligations, primarily for the benefit of the employee. A stranger to the employment is outside of the act's contemplation, and his liabilities are not intended by the act to be disturbed.’ Silvia v. Scotten, 2 W.W.Harr. [295], 32 Del. 295, 122 A. 513, 514.

“‘The parties to the compensation agreement,’ says the Pennsylvania Supreme Court, ‘are the injured...